Why criminalization of press should end?

Antigraft officials these days have been threatened with criminalization in the conflict between the antigraft body (KPK) and the National Police. Lately the press has also become a target

Reports last week said the Indonesian General Society Movement (GMBI) filed a report against Tempo magazine over an article on suspiciously large bank accounts of the Comr. Gen. Budi Gunawan in the Jan. 19-25 edition. The GMBI alleged that by revealing the flow of funds, the magazine had divulged state secrets and violated both the 1998 Banking Law and the 2010 Money Laundering Law.

In 2003, Tempo was reported by businessman Tomy Winata because of its report questioning Tomy’s role in the Tanah Abang market renovation in its March 2003 edition. Among others Tomy reported its chief editor Bambang Harymurti to the police.

The Central Jakarta District Court sentenced Bambang to one year imprisonment and his appeal was rejected. Fortunately, the Supreme Court overturned the lower courts’ judgments. However, other editors became likely more cautious from publishing contentious reports touching on powerful figures.

Despite the verdict favoring Tempo in the above case, there have been inconsistencies in the Supreme Court decisions on the media, notably when the Court upheld the sentence for Jawa Pos journalist Risang BimaWijaya, who was sentenced for defaming the owner of another prominent newspaper for alleged sexual harassment. The Court’s inconsistency has led to legal uncertainty in protection of press freedom.

Criminalization against the press must end; it is not the right mechanism to solve legal cases involving the press. Journalistic work is not worth criminalizing, as it neither improves the protection of press freedom nor does it create a culture of transparency.

Yet Indonesia’s legal system has many criminal provisions that can be used against the press, some in the Criminal Code, others in special statutes. Several have been used to “discipline” media, including legislation on hate speech, opprobrium or insult, spreading false news and violating public decency.

Their application reveals that prosecutors and judges have rarely shown consideration for the importance of press freedom to encourage free speech and the free flow of information in a democracy.

Many judges have even disregarded the availability of a new statute, the 1999 Press Law, and continued to apply the criminal law provisions in such cases.

However, one should admit some positive developments: the Supreme Court has mostly upheld the primacy of the press law and clearly stated that cases concerning the press should refer to this statute.

The latest case against Tempo is quite new, in its use of the 1998 Banking Law and the 2010 Money Laundering Law as a legal basis to sue the media company. But we must consider the case in the context of investigative journalism.

There are two legal instruments to protect investigative journalism. First, according to Indonesia’s Journalistic Code of Ethics, journalists engage in a professional manner in carrying out assignments.

This is officially interpreted as the use of certain methods that can be used for investigative news for the public interest.

Here we find similar debates in controversies regarding national security, such as in the case of the Pentagon Papers on the Vietnam War, which were leaked to the press in 1971 though still categorized as classified information.

Secondly, if the report was clearly related to Tempo’s investigative news, the GMBI should have first reported its complaint to the Press Council, not to the police. It is the Council that has the authority to determine whether such news cases have been carried out professionally in line with the 1999 Press Law and Press Code of Ethics.

Obsession with secrecy can impede oversight by the press and undermine efforts of democratic governance, which recognize the role of those outside government, in this case the media.

Even if the outcome is not a conviction, a criminal trial in itself is already detrimental for encouraging journalism.

Criminal provisions for press legal cases always have a negative impact on press freedom, for five reasons.

First, neither authoritarian nor post-authoritarian regimes have used criminal provisions with due regard for press freedom. This was obvious during the Soeharto years, but cases of defamation such as Megawati Soekarnoputri vs. Rakyat Merdeka (2003), Tomy Winata vs Tempo (2003), and Bersihar Lubis’ column in Tempo on the Attorney General’s Office to ban a history book (2007) have demonstrated how the government has continued to put media under pressure or even silence it altogether.

Second, jurisprudence has clearly been insufficient to prevent criminal law prosecutions being regarded as unlawful, as the Supreme Court has had to repeatedly argue that press cases should be resolved with the Press Law, instead of the Criminal Code. In 2005, the Supreme Court made it perfectly clear that criminalizing against the press goes against press freedom and hence the rules under the Press Law should be prioritized over other rules.

Although the Supreme Court still allows the application of the Criminal Code it is clear that it should be used with the utmost restraint and only as a complement to the Press Law.

Third, press freedom needs a liberal environment but it also needs protection — individuals should be free to publish in the news or mass media whatever they like without interference from the government, other persons or groups, as written by media experts in the mid 1980s.

In Indonesia, the government must be able to prevent vigilantes from attacking the press. My research published last year found that the application of criminal law is always aimed at attacking journalists or the press, which affects not only press freedom, but also fails to reflect the rule of law, democratization and the protection of human rights.

Fourth, at least 50 countries have diverted the issue of malicious wording, insults and defamation, from criminal law to private law. Several countries have even repealed the rules of defamation and insult because these were deemed insufficiently objective and therefore difficult to prove.

Fifth, international bodies, such as the UN Human Rights Committee and the Organization for Security and Cooperation in Europe (OSCE), have also recognized the threat to press freedom posed by criminal defamation laws, and have recommended that they be abolished.

Thus, there is a glimmer of hope. The application of criminal provisions in cases concerning the press – in particular those leading to the imprisonment of journalists – goes against building a more democratic public sphere.

_________

The writer is a lecturer at Faculty of Law Universitas Airlangga, currently Visiting Scholar at Graduate School of International Development, Nagoya University, Japan.